An actionable state-created danger claim occurs where: “(1) ‘the harm ultimately caused

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was foreseeable and fairly direct;’ (2) a state actor acted with a degree of culpability that shocks

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ESTATE OF PERCY BREWINGTON : CIVIL ACTION

:

v. :

: No. 05-6016

JOSEPH LOMBARDO, et al. :

MEMORANDUM

Ludwig, J. July 21, 2009

This is a civil rights action, 42 U.S.C. § 1983. Jurisdiction is federal question. On

September 15, 2008, partial summary judgment was entered in favor of the City of

Philadelphia. Judgment was denied with respect to plaintiff’s state-created danger claim

because the evidence of record established a genuine issue of material fact - whether the

murder of Perry Brewington was a foreseeable and direct consequence of the defendant

officers’ admitted failure to remove Ramon Mills’ gun, as required by the Protection From

Abuse order served upon Mills. An additional issue of fact existed - whether Brewington

was a foreseeable victim, based on testimony that Mills threatened him by name in the

presence of the defendant officers. Order-Memorandum, docket no. 36. 

Defendants’ motion for reconsideration focuses on one of the four elements of the

state-created danger claim, specifically, whether defendants’ actions constituted an

affirmative act. Because there is no evidence that it was, defendants contend that judgment

should have been entered in their favor. Defendants’ motion must be denied.1

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the conscience; (3) a relationship between the state and the plaintiff existed such that the

‘plaintiff was a foreseeable victim of the defendant’s acts,’ or a ‘member of a discrete class of

persons subjected to the potential harm brought about by the state’s actions,’ as opposed to a

member of the public in general; and (4) a state actor affirmatively used his or her authority in a

way that created a danger to the citizen or that rendered the citizen more vulnerable to danger

than had the state not acted at all.” Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir.

2006) (citations omitted).

The original memorandum explaining the denial of summary judgment considered the first and

third elements. Defendant’s motion for reconsideration does not refer to the second element, but

the record demonstrates an issue of fact - whether the conduct of the officers failing to remove

Mills’ gun despite the clear directive in the protection from abuse order shocks the conscience. 

See Miller v. City, 174 F.3d 368, 375-76 (3d Cir. 1999) (conduct of social worker that amounted

to grossly negligent or arbitrary conduct would satisfy this element, given the absence of a need

to make split-second decisions, as in a high speed chase, where an intent to harm standard would

be more appropriate). If so, failure to remove a deadly weapon in the face of threats of violence

was, in these circumstances, is at least grossly negligent.

2

In Rivas v. Passic, 365 F.3d 181, 197 (3d Cir. 2004), our Court of Appeals affirmed

the denial of summary judgment on similar facts. In Rivas, plaintiffs’ decedent had an

epileptic seizure and attacked defendant paramedic. When police backup arrived,she did not

inform the officers that restraining the decedent might kill him. The officers did restrain him

and he died as a result. Id. at 185-88. The appellate court held: “the EMTs’ decision to call

for police backup and then (1) inform the officers on their arrival that Mr. Rivas had

assaulted Rodriguez, (2) not advise the officers about Rivas’ medical condition, and (3)

abandon control over the situation, when taken together, created an opportunity for harm that

would not have otherwise existed.” Id. at 197. 

Here, the evidence establishes that defendant officers served the protection from abuse

order, much as the paramedic in Rivas called for help. They did not, as the PFA order

required, remove Mills’ gun from his possession, a critical error similar to that of the

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paramedic in Rivas, who failed to inform the officers of Rivas’ medical condition. The

officers also relinquished control of the situation by leaving without removal of the gun, just

as the paramedic gave up control by leaving the scene without telling the officers not to

restrain Rivas. The tense family stand-off in this case parallels the confusing and frightening

efforts in Rivasto assist plaintiff’s decedent without endangering the officers. Here, as there,

the evidence is sufficient to establish an issue of material fact as to this element of the claim.

 The reasoning in Rivas governs this case. 

Defendants also move for reconsideration on the basis of qualified immunity, a point

not raised in defendant’s motion for summary judgment and therefore not properly

considered on a motion for reconsideration.

BY THE COURT:

 /s/ Edmund V. Ludwig 

Edmund V. Ludwig, J.

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